Corruption is often insidious and difficult to prove. However, it can be inferred from opaque decision-making tainted by bias, and other violations of due process. Ensuring procedural fairness is a way to take decision-making out of the shadows where corruption happens and bring it into the light, so that decisions are made in a transparent and accountable manner.
Procedural fairness in bureaucratic decision-making
The principle of procedural fairness aims to control discretion and enhance accountability in bureaucratic decision-making. Any decision made by a public official or body has the potential to affect the rights and interests of individuals and would therefore have to follow procedural fairness principles. However, a key challenge in highly corrupt settings is the absence of individuals who could promote and enforce procedural fairness – politicians and bureaucrats will be unwilling to change the status quo since they benefit from it. Similarly, the potential of procedural fairness to curtail corruption in bureaucratic decisions faces several challenges, such as political and bureaucratic resistance; lack of awareness and ignorance of the law; and restricted access to justice.
Strengthening the legal requirement for procedural fairness
Procedural fairness is a common law principle. However, its application is fraught with several problems, especially the lack of a clear legal basis on which to challenge bureaucratic decisions.
Legislation that gives the courts powers to check executive excess through Constitutions and Fair Administrative Action Statutes presents a new opportunity to promote transparent and accountable decision-making. Elevating procedural fairness to a constitutional right and making it a mandatory legal requirement by enshrining it an Act of Parliament raises its importance and makes it easier to enforce. If the law is adhered to and enforced, it will be more difficult for bureaucrats to make corrupt decisions.
The enactment of laws and regulations on administrative procedures, as well as training administrators how to use them, ensures that they ‘get it right’ the first time when making decisions. Effective redress mechanisms monitor whether procedural fairness has been observed, and correct the errors of administrators when they ‘get it wrong’.
Judicial review and scrutiny of such decisions can encourage proper decision-making by instating ‘a judge over the bureaucrat’s shoulder’. It is a useful tool to assess whether procedural fairness has been observed, to improve administrators whose decisions or practices have been reviewed adversely, to expose administrative failing and, thus, stimulate reform and promote good administration.
Requiring bureaucrats to provide written reasons for their decisions is important because the affected party can see how a decision has been reached. It encourages better decision-making that is not only administratively sound, but also less likely to be tainted by corruption.
An Act of Parliament that establishes the right to procedural fairness, and how it can be enforced, is a step further in enabling citizens to obtain appropriate remedies in instances of violation.
Provisions allowing citizens to actively participate in bureaucratic decisions have the potential to curtail corruption. If they are able to monitor the decision-making processes to establish that they are proper, just, and fair, they can then challenge decisions deemed to violate these principles. So, besides just attending court, they are ensured a fair hearing because they can be heard, cross-examine persons who give adverse evidence against them, and request an adjournment of the proceedings.
Subsequently, disaffected individuals can challenge decisions through the courts of law and can apply for a specific remedy. However, petitioning the courts to review unfair administrative decisions requires legal expertise. As well as knowing they had such a right to procedural fairness – and that it had been violated – less affluent citizens would require legal aid to enforce it and access to legal aid organisations for redress. Legal and rights awareness education programmes, and anti-corruption initiatives, would empower them to do so.
Conclusion and recommendations
The enactment of Fair Administration Action laws can improve bureaucratic decision-making and reduce abuse of power. However, further research on how these laws are being enforced would help assess their impact and what further improvements are required to promote a culture of transparent and accountable decision-making by bureaucracies in developing countries.
Encouraging civil society voice and accountability initiatives to consider procedural fairness could result in improvements in transparency and accountability in the private sector. Furthermore, advocating legal aid and legal empowerment for citizens enforces their rights to procedural fairness and redress mechanisms in cases of violation.